FBI Report Raises Questions About Hillary Clinton’s Record-Keeping

There have always been two legal questions regarding Hillary Clinton’s use of a personal server for all of her work e-mails during her tenure as Secretary of State from 2009 to 2013. The first is whether she violated any of the laws regarding the handling of classified material. The second is whether she violated the Federal Records Act.

New documents released by the FBI Friday afternoon seem to be in Clinton’s favor on the first question, but raise new questions about the second.

On Friday, the FBI released 58 pages of documents from its investigation into Clinton’s email use. Eleven pages were notes taken by FBI agents during their three-and-a-half hour interview of Clinton on July 2, 2016 at FBI Headquarters as they neared the end of their investigation into whether classified material was improperly handled or stored on her server. The other forty-seven pages were a detailed, but redacted, account of the investigation from start to finish.

The documents contain material that will be put to use by Clinton’s political opponents. During her interview with the FBI agents and Justice Department officials, Clinton said that she didn’t know what the “(C)” designation of classified material on an e-mail meant. She said several dozen times that she couldn’t recall details of her email arrangement or specific emails that were found to have contained classified information. The FBI investigation notes indicate Clinton had multiple mobile devices, rather than the one she initially said she used and suggest those working for her took extra measures to permanently delete emails, which sources familiar with the case previously said she didn’t.

Unsurprisingly, however, there is nothing in the documents to contradict the unanimous conclusion of the FBI Director Jim Comey, his team of investigators and the Justice Department prosecutors who worked with them, that Clinton didn’t break any secrecy laws. While those laws are written very broadly, to bring charges under them prosecutors have generally required proof that the person mishandling the secrets was intentionally trying to harm the interests of the United States.

Even Clinton’s harshest critics have not alleged that. When he announced his team’s decision not to bring charges against Clinton after her interview in July, Comey said, “In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts,” Comey said.

The documents do raise new questions about Clinton’s compliance with the Federal Records Act, which requires federal officials to preserve their work records and to hand them over to the National Archives when they leave government. Days after President Barack Obama’s inauguration in January 2009, Clinton contacted former Secretary of State Colin Powell “to inquire about his use of a BlackBerry while he was Secretary of State,” the FBI interview notes say.

“Powell warned Clinton that if it became ‘public’ that Clinton had a BlackBerry, and she used it to ‘do business,’ her e-mails could become ‘official record[s] and subject to the law.” The FBI interview also says Powell told Clinton, “Be very careful. I got around it all by not saying much and not using systems that captured the data.”

For more on Clinton, watch:

When the FBI asked Clinton about the exchange, she told them that she took Powell to mean work-related communications would be government records and said in any event Powell’s comments “did not factor into her decision to use a personal e-mail account,” according to the FBI records. In a later email exchange, a State official warned a top Clinton aide, Huma Abedin, that if Clinton had an official State Department email account, all the emails on it would be subject to public requests under the Freedom of Information Act. Abedin said such an arrangement wouldn’t make sense for Clinton.

Clinton has repeatedly said that she thought she was preserving her work records by emailing her colleagues on their work emails, which she assumed would be captured by government retention procedures. The State Department’s Inspector General later said this was not an appropriate way to preserve government records and that Clinton should have printed and filed work emails from her private server.

Asked by the FBI about her failure to hand over her work emails when she left office, Clinton said she “received no instructions or direction regarding the preservation or production of records from State during the transition out of her role as Secretary of State.” She said that in December of 2012, she suffered a concussion, and around New Years had a blood clot. She said that her doctor instructed her not to go to work more than a few days a week and that she could not recall all of the briefings she received during that period.

Taken together, the documents paint the picture of a thorough FBI and Justice Department investigation. The newly released documents appear to support their decision with regard to violations of the secrecy laws.

But they raise further questions about Clinton’s compliance with the Federal Records Act. That may be a moot point, though as violations of that law are at their worst criminal misdemeanors, not felonies, and in a case involving Henry Kissinger, the Supreme Court set a high bar for prosecuting them.

Obama Criticizes the Media, but His Administration Is Part of the Problem

It’s hard to imagine a politician loving the news media unconditionally, so it’s probably not surprising that President Barack Obama had some critical comments to make about the press in a speech on Monday night. But the commander-in-chief’s remarks were particularly difficult to take for some, given the way his administration has treated the media.

The President was speaking at a dinner held in Washington to honor the winner of the Toner Prize, an award for political reporting named after Robin Toner, a New York Times correspondent who died in 2008.

In what appeared to be a reference to the campaign of Republican presidential candidate Donald Trump, Obama said, “A job well done is about more than just handing someone a microphone. It is to probe and to question, and to dig deeper, and to demand more. The electorate would be better served if that happened. It would be better served if billions of dollars in free media came with serious accountability.”

The “free media” comment seemed to be a direct reference to a recent estimate by the New York Times that suggested Donald Trump has gotten the equivalent of almost $2 billion in media coverage since his campaign began. So perhaps the President agrees with those who argue that the news media has helped create the phenomenon that is Donald Trump.

The President went on to praise the “deep reporting, the informed questioning, the in-depth stories” that the Toner Prize celebrates, which he said “lasts longer than some slapdash Tweet that slips off our screens in the blink of an eye, that may get more hits today, but won’t stand up to the test of time.”

Many journalists would probably agree with Obama’s remarks about digging deeper and demanding more as well as focusing on long-lasting journalism as opposed to dashing off tweets. But when reporters have tried to do this with the White House and the rest of the Obama administration, they have been stymied at every turn, and in some cases, they have even been threatened with prosecution.

As investigative reporter John Russell pointed out in a response to the President’s criticisms on Twitter, the Obama administration holds the record for denying or withholding the largest amount of Freedom of Information requests. How is that helping the news media to “dig deeper” or “demand more” accountability? Former New York Times executive editor Jill Abramson has said the Obama government is “the most secretive White House I have ever been involved in covering.”

It’s not just FOIA requests. The Obama government has also gone after journalists for doing their jobs—journalists like New York Times reporter James Risen, who was threatened with a jail term for refusing to divulge the name of a former CIA agent who leaked information about the U.S. military’s nuclear program. Risen has called Obama “the greatest enemy of press freedom in a generation.”

Former Washington Post executive editor Leonard Downie looked at the Obama government’s track record on secrecy in 2013, and didn’t like what he found. Among other things, the federal government used a secret subpoena to compel the Associated Press to release two months worth of phone records for the 20 phone lines used by more than 100 AP reporters in three news bureaus, as well as the House of Representatives.

In another case, the Justice Department seized the phone records of Fox News reporter James Rosen as well as his personal email logs, tracked his visits to the State Department and his phone conversations with a security adviser there who was later charged with leaking information about North Korean nuclear weapon testing. In the secret search warrant used to tap Rosen’s records, he was described as “a co-conspirator.”

Watch: “We want to make media for the way the world is today.”

In his speech this week, the President also criticized the splintering or Balkanization of the media, in which news consumers stick to channels or sources that cater to their existing prejudices, whether it’s Fox News, YouTube, or Reddit. Yet, as the Washington Postpointed out in a response to the speech, Obama has also been part of this problem.

The administration likes to talk about how open and transparent it has been with the media, and yet much of Obama’s dealings with the press have focused on specific digital outlets such as Reddit and YouTube with events on these channels being criticized as lightweight, rather than in-depth interviews with the traditional media. As the Post put it:

When it comes to granting interviews, he very often favors media that target particular slices of the electorate that are largely aligned with him already: left-leaning comedians, bloggers, YouTubers and podcasters. He is more reluctant to submit to questioning by mainstream news outlets and conservative publications that would push back harder on issues on which his opponents disagree with him.

On the one hand, it’s a good thing that the President has been more open to new media than any of his predecessors, using Twitter and Instagram and Facebook to connect directly with Americans. But journalists who have been frozen out by the Obama administration complain that this feel-good strategy also acts as an end-run around the traditional media, and this strategy has insulated the government from direct questioning.

So what the President seems to mean when he asks for a strong press that is willing to dig deeper and ask the hard questions is that he would like the media to do that to his opponents—but not necessarily to him or his administration.

Ebola, hospitals, and the deadly consequences of keeping secrets

The civic-minded might think communications chess games are unacceptable. A community depends on hospitals for honest communication, especially in a time of crisis. But, even from a civic standpoint, the answer is not straightforward. Many hospitals are nonprofit organizations and receive public funding. A mishap could cost a hospital millions of dollars in legal fees and lost revenue, which raises serious considerations for an already strained system. Nevertheless, some say, like operating a bank, gaining trust is key.

The Ebola crisis in Dallas has thrown the problem of secrecy at hospitals into stark relief.

The Texas Health Presbyterian Hospital is under pressure because of several mishaps related to its care of a patient who had contracted the virus. The most recent: hospital nurses have anonymously come forward to say that protective gear and sanitary conditions at the facility are substandard. The hospital shot back, saying that it has a hotline for these types of complaints and that it never received them. The nurses’ claims have yet to be substantiated.

But the overall culture of secrecy at hospitals is undeniable. Many health center employees throughout the region have expressed fear of talking to the press. Emails have gone out to employees threatening that they could lose their jobs if they loosen their lips.

There’s certainly no shortage of historical corporate secrecy stunts that have put the public in grave danger: think about Ford/Pinto in the 1970s, Pacific Gas and Energy’s groundwater scandal (ala Erin Brockovich) in the 1990s, the Ford/Firestone controversy in 2000, the Pfizer/Vioxx mess in the early 2000s. In these cases, corporations paid billions of dollars to aggrieved parties who claimed that their products led to death by everything from heart attacks to cancer to burns.

In the case of Ebola, however, even more is at stake. Communication is key to stemming the spread of the virus. If conditions at Texas Presbyterian were in fact substandard, the two recent Ebola infections could have been prevented if nurses felt like they could speak up. Information about other potential patients only makes the public more alert, which, in this case, helps more than it hurts.

“If you are going to make an error today, it is better to make it in terms of total transparency,” says Michael Useem, William and Jacalyn Egan Professor of Management at the Wharton School. Gaining trust is essential, he says. “Any hint that a hospital is not fully disclosing something is going to undermine that faith and confidence that patients need to make the independent decision to come to the hospital.”

The question is whether a hospital can manage a public health concern without putting its own business—one very important to the overall stability of the community—at risk. That’s no game of Eleusis.